Defined
Terms. For purposes of this Code, the following terms, phrases, words,
and their derivatives shall have the meanings set forth in this Section,
unless the context clearly indicates that another meaning is intended.
Words used in the present tense include the future tense, words in
the single number include the plural number, and words in the plural
number include the singular. The words "shall" and "will" are mandatory,
and "may" is permissive. Words not defined shall be given their common
and ordinary meaning.
ABANDONED
Any equipment, materials, apparatuses, devices, or facilities
that are:
1.
Declared abandoned by the owner of such equipment or facilities;
2.
No longer in active use and the owner of such equipment or facilities
fails to respond within thirty (30) days to a written notice sent
by the City; or
3.
As otherwise may be defined by applicable law.
ACCESS FACILITIES
Means:
1.
Channel capacity designated for public, educational or governmental
access use; and
2.
The facilities and equipment for the use of such channel capacity.
AFFILIATE
Each person, directly or indirectly, controlling, controlled
by, or under common control with the licensee; provided that affiliate
shall in no event mean any limited partner or shareholder holding
an interest of less than fifteen percent (15%) of such licensee, or
any creditor of such licensee solely by virtue of its status as a
creditor and which is not otherwise an affiliate by reason of owning
a controlling interest in, being owned by, or being under common ownership,
common management, or common control with such licensee.
AGREEMENT
A communications rights-of-way use agreement authorized herein
and executed by
the City and licensee.
ANTENNA
Any device that transmits and/or receives radio waves for
voice, data or video communications purposes, including, but not limited
to, television, AM/FM radio, microwave, cellular telephone, communications
service, or otherwise. A combination of panels, boxes, or other antennas
physically connected and designed in conjunction to receive signals
at one (1) location in the system shall be considered one (1) antenna.
APPLICANT
Any person applying for a rights-of-way use agreement, franchise,
license, any permit, or other authorization to install, maintain,
repair, or otherwise physically access facilities in the rights-of-way.
BASIC CABLE SERVICE
Any cable service tier that includes the lawful retransmission
of local television broadcast signals and any public, educational
and governmental access programming required by this Chapter to be
carried on the basic tier. Basic cable service as defined herein shall
be consistent with 47 U.S.C. Section 543(b)(7) (1997).
CABLE ACT
The Cable Communications Policy Act of 1984, Pub. L. No.
98-549, (codified at 47 U.S.C. Sections 521 — 611, 1982 and
Supp. V. 1987) as amended by the Cable Television Consumer Protection
and Competition Act of 1992, Pub. L. No. 102-385, and the Telecommunications
Act of 1996, Pub. L. No. 104-104 (1996) as it may, from time to time,
be amended.
CABLE SERVICES
Means:
1.
The one-way transmission to subscribers of (i) video programming,
or (ii) other programming service; and
2.
Subscriber interaction, if any, which is required for the selection
or use of such video programming or other programming service.
CABLE INTERNET SERVICES
The offering of direct access by a cable licensee to the
international computer network of both Federal and non-Federal interoperable
packet switched data networks to customers for a fee. For purposes
of an agreement, "cable internet service" shall mean
the direct access to the internet provided to customers over the cable
system and shall include the provision of incidental services or revenues
that are required by law to be treated under the same regulation as
such direct access service. Except as may be otherwise required by
applicable law or a binding provision of a franchise issued by the
City prior to the effective date of this Code, a provider receiving
revenue from cable internet service shall include such revenue in
the calculation of gross receipts from communications services and
shall be required to have a communications agreement with the City
governing the use of the rights-of-way for such purposes. Except as
may lawfully be required by the City or otherwise dictated by applicable
law, all agreements or franchises granted hereinafter shall authorize
use of the rights-of-way for cable internet service only pursuant
to a communications use agreement. All prior payments to the City
attributable to such cable internet service under a cable franchise
shall be irrefutably deemed to be lawful compensation for the past
use prospectively paid under any new communications agreement, irrespective
of any additional rates or terms required for any future use under
any new communications agreement.
CABLE SYSTEM
A facility consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within the franchise
area, but such term does not include:
1.
A facility that serves only to retransmit the television signals
of one (1) or more television broadcast stations;
2.
A facility that serves subscribers without using any public
rights-of-way;
3.
A facility of a common carrier which is subject, in whole or
in part, to the provisions of 47 U.S.C. Sections 201 — 226,
except that such facility shall be considered a cable system (other
than for purposes of 47 U.S.C. Section 541(c)) to the extent such
facility is used in the transmission of video programming directly
to subscribers, unless the extent of such use is solely to provide
interactive on-demand services;
4.
An open video system that complies with Section 653 of the Cable
Act; or
5.
Any facility of any electric utility used solely for operating
its electric utility system.
CAPITAL COSTS
Costs associated with the purchase of assets, products or
other resources that will provide service for more than one (1) year
but shall not have any meaning inconsistent with generally accepted
accounting principles.
CHANNEL
A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of carrying one (1)
industry standard video signal, in either analog or digital form.
At the time of the passage of this Chapter, analog standard channel
is defined as 6 MHz.
CITY ENGINEER
The City Engineer, Director of Public Works, or other designated
City Official.
CODE
This "Utilities and Communications Services Code" and all
provisions therein established by this Chapter.
COLLOCATION
The shared use of facilities including, but not limited to,
the placement of conduit owned by more than one (1) rights-of-way
user in the same trench or boring and the placement of equipment owned
by more than one (1) user in the same or connected conduit. Collocation
does not include interconnection of facilities or the sale or purchase
of capacity (whether bundled or unbundled).
COMMUNICATIONS
The transmission via the facilities, in whole or in part,
between or among points specified by the user, of information of the
user's choosing (e.g., data, video, voice) without change in the form
or content of the information as sent and received, regardless of
the statutory or regulatory scheme to which such transmissions may
be subject.
COMMUNICATIONS SERVICE
The transmission via facilities, in whole or in part, of
any writings, signs, signals, pictures, sounds, or other forms of
intelligence through wire, wireless, or other means, including, but
not limited to, any "telecommunications service," "enhanced service,"
"information service" or "Internet access service," and "cable Internet
service" as such terms are now, or may in the future be, defined under
Federal law, and including all instrumentalities, facilities, conduit,
apparatus ("communications facilities"), and services (among other
things, the receipt, forwarding, and delivery of telecommunications)
incidental to or designed to directly or indirectly facilitate or
accept such transmission. This term does not include "cable service,"
but these services shall be subject to separate cable franchising
requirements and application.
COMPLAINT
Any oral, written or electronic inquiry, allegation or assertion
made by a person regarding cable service or cable system operations.
CONVERTER
An electronic device that converts signals to a frequency
not susceptible to interference within the television receiver of
a subscriber and, through the use of an appropriate channel selector,
permits a cable subscriber to view all authorized cable subscriber
signals delivered at designated converter dial locations. Converters
include all devices furnished to the subscriber and owned by the cable
provider.
DIRECT INCREMENTAL COSTS
The costs actually incurred by a cable provider in meeting
an obligation under its franchise which the provider would not otherwise
have incurred in order to either operate and conduct the business
of its cable system or meet another obligation of the franchise.
DIRECTOR
The Public Works Director of the City of Overland or his/her
designee.
DROP
The cable or cables that connect the ground block on the
cable subscriber's property to the nearest feasible point on the cable
system in order to receive cable service.
EXCAVATION PERMIT
A permit authorizing excavation for the construction or installation
of facilities in the City's rights-of-way.
EXCAVATION, EXCAVATING, or EXCAVATE
Any act by which earth, asphalt, concrete, sand, gravel,
rock, or any other material in or on the ground is cut into, dug,
uncovered, removed, or otherwise displaced, by means of any tools,
equipment, or explosives, except as excluded by applicable law.
EXCESS CAPACITY
The remaining volume or capacity in any existing or future
duct, conduit, manhole, handhold, or other facility, including dark
fiber, in the rights-of-way that is used, or authorized by the rights-of-way
user to be used, by others.
FACILITIES MAINTENANCE PERMIT
A permit issued by the City for the ROW user to provide maintenance
to its facilities or otherwise perform work in the rights-of-way that
does not involve excavation but requires physical access to the facilities
in the rights-of-way.
FACILITIES or FACILITY
Any equipment, installation, or structure located in the
rights-of-way, including, without limitation, cables, wires, lines,
poles, towers, antennas, conduit facilities, vaults, pedestals, transmitters,
meters, fiber, foundations, and any other equipment, infrastructure,
structures, or obstruction. Facilities shall not include lawful vehicular
parking or use, or pedestrian use.
FCC
Federal Communications Commission.
FRANCHISE
A binding and accepted ordinance for certain ROW users to
occupy the rights-of-way for the purpose of providing, transporting
or distributing electricity, gas, water, steam, lighting, energy,
or sewer service to any person or area in the City's limits and boundaries.
FRANCHISE FEE
Any tax, fee, or assessment of any kind imposed by the City or other governmental entity on a cable service provider or its cable subscribers, or both, solely because of their status and activities as such, pursuant to Section
655.030 of this Code. The term "franchise fee" does not include:
1.
Any tax, fee, or assessment of general applicability (including
any such tax, fee or assessment imposed on both utilities and cable
operators or their cable services but not including a tax, fee or
assessment that is unduly discriminatory against cable service providers
or cable subscribers);
2.
Capital costs that are required by a cable franchise to be incurred
by a grantee for public, educational or governmental ("PEG") access
facilities;
3.
Requirements or charges incidental to the award or enforcement
of a cable franchise, including payments for bonds, security funds,
letters of credit, insurance, indemnification, penalties, or liquidated
damages;
4.
Any permit fee or other fee imposed under any valid right-of-way
ordinance; or
5.
Any fee imposed under Title 17 of the United States Code.
GRANTEE
A person who is granted a cable franchise and that person's
agents, employees, lawful successors, transferees or assignees, or
any other person providing cable communications by use of facilities.
GROSS RECEIPTS
All revenues received directly or indirectly by a licensee
or its affiliates for communications services originating, terminating
or otherwise rendered within the corporate limits of the City and
all revenue derived from the use of the communications services facilities.
Except to the extent as may be prohibited by law, such "gross receipts"
shall specifically include, but shall not be limited to, all revenue
of the licensee derived from the following:
1.
Recurring local exchange service revenues for business and residence
which include basic telephone exchange service, touch tone, custom
calling services and measured local calls;
2.
Recurring local exchange service revenues for public, semi-public
and private coin;
3.
Local directory assistance (411);
4.
Line status verification/busy interrupt;
5.
Local operator assistance;
6.
Information delivery service;
7.
Cellular and other wireless communication services revenue;
provided that such revenues derive from a system having antennae or
other parts of the mobile system physically located within the rights-of-way;
8.
Non-recurring local exchange service revenue which shall include
customer service for installation of lines, reconnection of service
and charge for duplicate telephone bills;
9.
Revenue received by the licensee from reseller service providers
(except for revenues from reseller service providers that have a separate
enforceable agreement with the City providing for payment of gross
receipts of that reseller service provider);
10.
Revenue from internet access services and including all high-speed
and traditional subscriber line charges or services (and including
cable internet service, unless such service revenues are validly required
to be included and are collected as gross revenues in a cable agreement
between licensee and the City);
11.
Revenue from rent, physical use, collocation or sale of the
facilities, network elements, or a portion thereof for any purpose;
12.
Late charges or interest received on gross receipts;
13.
Any portion of the use fees collected by licensee from any person;
14.
All other applicable revenues not listed herein.
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"Gross receipts" shall not include uncollectable
debt, any Federal, State or local taxes separately stated on a customer's
bill. "Gross receipts" shall not include revenues from affiliates (1) where the affiliates have a separate enforceable agreement with the City providing for payment of such affiliate gross receipts or (2) where the affiliate does not utilize, transmit communications through, or connect to any part of the facilities or (3) where the affiliate pays to provider fair market value for the use of the facilities on terms available to all other providers and competitors and such compensation is included in provider's gross receipts (and provided that provider has sought from the City and been granted written exemption under this Subsection (3) after presentation of adequate proof and documentation provider qualifies for this exemption). In the event a licensee receives revenues for communications services or other activities within and without the City of which the specific portion attributed to operations in the City cannot be directly determined ("unallocated revenues"), "gross receipts", with
respect to such revenues, shall mean the portion thereof derived by
multiplying such revenues by a fraction, the numerator of which is
the gross receipts from the City and the denominator of which is the
total revenues of licensee attributable from the area generating such
unallocated revenues. All revenue from or relating to or connected
with communication services deriving from any billing address within
the City shall be presumed to be gross receipts of licensee, unless
demonstrated in writing to the contrary as to each such revenue.
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GROSS REVENUES
Any revenue actually received by a grantee, or by any other
entity that is a cable operator on a grantee's cable system, including
the grantee's affiliates, from the operation of the grantee's cable
system to provide cable services. By way of illustration and not limitation,
this definition would include revenue derived from pay cable fees,
installation and reconnection fees, leased channel access fees; converter
rentals; franchise fees collected from subscribers; revenue from cable
internet service (if it is not required to be included in the gross
receipts of a separate binding agreement with the City as prescribed
in this Code); revenue from home shopping to the extent conducted
through a cable service; all cable service lease payments from the
cable system; payments or other consideration received by the grantee
from programmers for carriage of programming on the cable system and
accounted for as revenue under generally accepted accounting principles
("GAAP"); advertising revenues; revenues from data transmissions to
the extent these transmissions are considered cable services under
Federal law; payments or other consideration received by the grantee
for the use of the cable system to provide cable service and accounted
for as revenue under GAAP. Gross revenues shall include revenue received
by any entity other than the grantee where necessary to prevent evasion
or avoidance of the obligations under this Code or a franchise to
pay the applicable cable franchise fees. Revenues which are not directly
attributable to specific cable subscribers, including, but not limited
to, leased access fees, advertising revenues, and home shopping commissions,
shall be allocated among the franchising jurisdictions served by the
grantee's cable system on a per subscriber or other equitable basis
measured in a consistent manner from period to period. Gross revenues
shall not include:
1.
To the extent consistent with GAAP, bad debt; provided however,
that all or part of any such bad debt that is written off but subsequently
collected shall be included in gross revenues in the period collected;
2.
Amounts collected from cable subscribers for public, educational
and governmental access, provided however, this exclusion does not
limit a grantee's ability to pass through franchise-related costs
to the extent allowed by applicable law; or
3.
Any taxes on cable services furnished by grantee which are imposed
directly upon any subscriber or user by the State, City or other governmental
unit and which are collected by grantee on behalf of said governmental
unit.
INSTITUTIONAL NETWORK OR I-NET
A communication network which is constructed or operated
by grantee and which is generally available only to cable subscribers
who are not residential subscribers. The I-Net shall consist of capacity,
fibers or both, from both within the primary cable network and/or
separately constructed networks that may be dedicated to governmental,
educational and other publicly funded users for two-way, broadband
communications. The I-Net includes all equipment and maintenance of
equipment required to make the capacity available including, but not
limited to, fiber and coaxial cable, cable modems, switching, routing,
transmitting and receiving necessary for the use of the network as
set out in the individual cable franchise.
INSTITUTIONAL NETWORK SERVICES
The provision of an I-Net by a cable system operator to governmental,
educational and other non-profit, publicly funded users, as determined
by the City, pursuant to the terms of its franchise for non-commercial
applications including, but not limited to, two-way dedicated voice,
video, data and telephony channels connecting and interconnecting
user facilities.
INTERNET ACCESS SERVICE
The offering of direct access to the international computer
network of both Federal and non-Federal interoperable packet switched
data networks to customers for a fee. For purposes of this Code, internet
access service shall include the direct access to the internet or
internet connections including, but not limited to, all high-speed
and dedicated subscriber line ("DSL") communications connections to
the internet or otherwise and shall include the provision of incidental
services and related services, but not including revenue from independent
services such as internet web design or internet web hosting and the
sale of internet service modem. Except where otherwise stated, the
term "internet access service" shall include cable
internet service.
LICENSE
The rights and obligations extended by the City to a person
to use and occupy the rights-of-way for the purpose of installing
temporary facilities in the rights-of-way or incidental uses such
as ingress and egress facilities, lateral utility lines, mailboxes
or driveway aprons.
LICENSEE
The party subject to a communications rights-of-way agreement,
or its successor, assigns, transferee or any party otherwise, using
the rights-of-way for communications services other than reseller
service providers.
LINEAR FOOT
The length in feet of cable, wire, fiber, conduit or other
linear facilities. Facilities that are physically connected, wrapped
or lashed as a single cable, conduit or bundle of cables or conduit
shall be considered a single facility for purposes of calculating
each linear foot, provided that each conduit or bundle of conduit
up to and including four (4) inches in exterior diameter shall constitute
a separate facility for calculating linear feet. Conduit having fiber
optic or other cable or wire installed within it shall not be considered
separate facilities but shall be considered part of the single "conduit"
or bundle for purposes of calculating linear feet. Each provider shall
be subject to a separate linear foot charge for facilities used by
provider and subject to this Code.
NORMAL BUSINESS HOURS
Those hours during which most similar businesses in the community
are open to serve customers. In all cases, normal business hours must
include some evening hours, at least one (1) night per week, and some
weekend hours.
NORMAL OPERATING CONDITIONS
Those cable services or conditions that are within the control
of a cable system franchise grantee. Those conditions which are ordinarily
within the control of grantee include, but are not limited to, special
promotions; pay-per-view events; rate increases; regular peak or seasonal
demand periods; and maintenance or upgrade of the cable system. Those
conditions that are not within the control of grantee include, but
are not limited to, natural disasters; civil disturbances; power outages;
telephone network outages; vandalism; public works projects for which
no advanced notice is given; and severe or unusual weather conditions.
OPEN VIDEO SERVICES
Any video programming services provided to any person by
a licensee certified by the FCC to operate an open video system pursuant
to Section 47 U.S.C. 573, as may be amended, regardless of the facilities
used.
PERMIT
An excavation permit, facilities maintenance permit, or other
permit authorizing work in the ROW.
PERSON
Any corporation, partnership, proprietorship, individual,
organization, governmental entity or any natural person.
PROVIDER
A licensee or grantee or any person required to have a communications
service agreement or cable service franchise.
PSC
The Missouri Public Service Commission.
PUBLIC BUILDING
Any building owned or for the greater part occupied by the
City or other governmental unit.
RENEWAL
A new communications service agreement or cable service franchise
granted to an existing provider.
REPORTS
Any and all non-trade secret documents and information required
to be completed and/or kept or filed by a grantee or licensee on order
of the Federal Communications Commission, State or City. In accordance
with applicable law, the City shall maintain such information as confidential
to the extent that the provider identifies specific information as
such.
RESELLER SERVICE PROVIDER
A person providing communications service or cable service
within the City that does not have ownership, possessory interest,
or control of identifiable facilities in the rights-of-way, but instead
uses the rights-of-way by interconnecting with or using the network
elements of another ROW user utilizing the rights-of-way, and/or by
using excess capacity or bandwidth from a facility-based ROW user
with no right to physically access the facilities or ROW.
RIGHTS-OF-WAY or ROW
The surface and space on, above, and below every municipal
street, alley, road, highway, lane, or City rights-of-way in which
the City has an ownership interest or right of management, and including
such adjacent areas within such public ways within such City control,
except as may be limited herein or by applicable law. Rights-of-way
shall not include public property owned or leased by the City and
not intended for right-of-way use, including, but not limited to,
City Hall property, parks, or public works facilities.
RIGHTS-OF-WAY USE AGREEMENT or ROW USE AGREEMENT
The document granting consent by the City to use the City's
rights-of-way for the purpose of providing communication services
or for such other use for which a franchise or license is not applicable
and obtained as provided for herein.
ROW ORDINANCE
Title V, including, but not limited to, Chapter
525, Article
III, Excavations, of the City of Overland, Missouri, Municipal Code and such other ordinances that regulate, without limitation, the excavation, construction, and use of the rights-of-way by all persons and such other ordinances and regulations regulating the same.
ROW USER
Such persons and entities, whether a PSC-registered utility
or otherwise, owning, controlling, leasing, maintaining, using, or
installing facilities in the rights-of-way of the City, not otherwise
expressly exempted. A ROW user shall not include reseller service
provider.
STANDARD INSTALLATION
Any service installation that can be completed using a drop
of one hundred twenty-five (125) feet or less.
SUBSCRIBER
Any person who or which lawfully elects to subscribe for
any purpose to cable service provided by a grantee by means of, or
in connection with, the cable system, and whose premises or facilities
are physically wired and lawfully activated to receive cable service
from grantee's cable system, including persons who receive cable service
without charge according to the terms of the Code or franchise.
SYSTEM
The cables, wires, lines, towers, wave guides, optic fiber,
antennae, and any associated converters, equipment, or other facilities
designed and constructed for the purpose of producing, receiving,
amplifying or distributing communications to or from locations within
the City.
TRAINED REPRESENTATIVE
Employees of a grantee who have the authority and capability
while speaking with a cable subscriber to, among other things, answer
billing questions, adjust bills, and schedule service and installation
calls.
USE FEE
The fee imposed by the City on licensee for use of the rights-of-way for communications services pursuant to Section
655.020 of this Code.